Medical Malpractice Issues and Hospital and Health Care Provider Bankruptcy

Medical Malpractice Issues and Hospital and Health Care Provider Bankruptcy

Excerpt:

This Emerging Issues Analysis examines how federal law affects medical malpractice issues and hospital and health care provider bankruptcies. Specifically, the article discusses (i) how 28 U.S.C. § 157(b)(2)(B) [an annotated version of this statute is available to lexis.com subscribers], which states that a bankruptcy court may not hear, liquidate or estimate contingent or unliquidated personal injury tort or wrongful death claims for the purposes of distribution, affects the bankruptcy process; (ii) the Courts' interpretation of "personal injury claims;" (iii) Tort Claims and Mass Tort Implications and Protocols; (iv) mediation procedures; and (v) self insurance.

How 28 U.S.C. § 157(b)(2)(B) affects the Bankruptcy Process

The bankruptcy court's ability to estimate claims in the context of a hospital bankruptcy is made more complicated by virtue of other federal law which affects the bankruptcy process. Specifically, under 28 U.S.C. § 157, a bankruptcy court may not hear, liquidate or estimate contingent or unliquidated personal injury tort or wrongful death claims for the purposes of distribution. Section 157(b)(2)(B) provides that core proceedings arising under title 11 include, but are not limited to:

allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11.

28 U.S.C. 157(b)(5)

Further, section 157(b)(5) provides that "[t]he district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending."

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